The Gauhati High Court dismissed the writ petition as the statutory remedy available under the Central Excise Act is more efficacious.
Mr A. Jain, counsel for the petitioner and Mr S.C. Keyal, standing counsel for the CGST & Central Excise Commissionerate, appeared for all the respondents.
The petitioner, Sajid Rahman has assailed the validity of the demand -cum- show-cause notice dated 07.11.2019 as well as the order passed by the Principal Commissioner, CGST & Central Excise, Guwahati (respondent no.2). By the said order, the respondent no.2 had confirmed the service tax demand of Rs.2,95,33,148/- under Section 73(2) of the Finance Act, 1994, interest under section 75 of the Finance Act, 1994, penalty under section 77(1), 77(2) and 78 of the Finance Act, 1994.
The respondents raised the preliminary issue on the point of maintainability by submitting that an alternative and efficacious remedy is available to the petitioner by filing an appeal before the appellate authority. It was submitted that the departmental authorities had issued a demand -cum- show-cause notice dated 07.11.2019 to the petitioner, wherein respondent no.2 had provided all the necessary particulars
It was submitted that in this writ petition, the petitioner has suppressed material facts that he was served with letters dated 10.11.2016 and 22.07.2019 to furnish details, which were not responded to.
The petitioner, while opposing the preliminary issue of maintainability, has submitted that the petitioner was awarded a contract of (i) Irrigation related works for the Irrigation Department, Govt. of Assam, (ii) Construction of Fish Market for the Directorate of Fisheries, Govt. of Assam, (iii) NF Railway for earthwork, construction of retaining walls, side drains and other ancillary works.
The petitioner claims that his receipts from the Government are in respect of construction works undertaken for the Irrigation Department of the Government of Assam, and also claims that the service component of those receipts does not fall into the taxable category of service.
Justice Kalyan Rai Surana observed that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred a writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision before the Tribunal.
In that view of the matter, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the assessment order in view of the availability of a statutory remedy under the Act.
The Court was of the opinion that as the writ petition does not disclose any documents by which prima facie satisfaction can be recorded that all receipts for which TDS was deducted which is reflected in Form 26AS are entitled to exemption, hence, the decisions cited by the petitioner cannot be applied under the facts unique to the case.
Since the alternative and efficacious remedy is available to the petitioner, the Court dismissed the writ petition. It was provided that if the petitioner was advised to seek an alternative and efficacious remedy by filing a statutory appeal, the period spent from 21.03.2022 till the date of delivery of the order would be entitled to be excluded from the computation of limitation.
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